Mirithi v Penda Health Limited (Employment and Labour Relations Cause E152 of 2024) [2026] KEELRC 1989 (KLR) (7 July 2026) (Ruling)

Mirithi v Penda Health Limited (Employment and Labour Relations Cause E152 of 2024) [2026] KEELRC 1989 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1989 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E152 of 2024 BOM Manani, J July 7, 2026 Between Dennis Munene Mirithi Claimant and Penda Health Limited Respondent Ruling Background 1.The court delivered judgment in the cause on 9th February 2026 through which it declared the Respondent’s decision to terminate the Claimant’s contract of service unfair. It further awarded the Claimant: compensation for unfair termination of his contract in the sum of Ksh. 600,000.00; interest on the aforesaid amount; and costs of the suit. 2.The Respondent was aggrieved by the decision. Consequently, it commenced the process of appeal against it (the decision) by lodging a Notice of Appeal dated 23rd February 2026. 3.The Respondent subsequently filed the application dated 6th March 2026 seeking stay of execution of the judgement pending the hearing and determination of the proposed appeal. The application is founded on the grounds on the face thereof and the affidavit sworn by one George Oiye, the Respondent’s in-house legal counsel. 4.The Respondent contends that it has already taken steps to challenge the impugned decision on appeal. It asserts that the intended appeal is merited. It avers that it will suffer loss if the Claimant is allowed to execute for the decretal amount before the appeal is heard and determined because there is no guarantee that he will be in a position to refund the impugned amount in the event the appeal succeeds. 5.The Respondent avers that it is ready to provide security for the performance of the decree. It further avers that it is ready to abide by any other conditions which the court will impose. 6.The Claimant has opposed the application. He has filed Grounds of Opposition and a Replying Affidavit to anchor his response. 7.The Claimant avers that the Respondent has not demonstrated the loss it will suffer if the execution process is allowed to proceed. He further contends that the Respondent’s assertion that he is not in a position to refund the decretal sum should the appeal succeed is speculative since no evidence has been provided to support the contention. 8.The Claimant contends that the decretal sum that was awarded to him is modest and should not justify an order for stay of execution. It is his case that the court should let him enjoy the fruits of the judgment. 9.The Claimant avers that the Respondent has not provided security for the performance of the decree should the appeal fail. He contends that all that it (the Respondent) has done is to make bare averments of the intention to provide security. 10.The Claimant avers that the proposed appeal has no merit. He contends that it (the appeal) is merely intended to re-litigate matters which have already been conclusively determined by the court. Analysis 11.The law which governs requests for stay of execution pending appeal is codified in the Civil Procedure Act and the Civil Procedure Rules. Order 42 of the Rules entitles a party who is aggrieved by a decision of the court to apply for stay of execution of the decision pending determination of an appeal against it (the decision). 12.However, the applicant must satisfy certain conditions before the court can issue the order for stay of execution. He must: demonstrate that the application for stay of execution was filed without undue delay; demonstrate that he will suffer substantial loss if the order for stay of execution is not granted; and provide security for the performance of the decree (see Kimondo & another v Progressive Credit Ltd [2025] KEHC 7297 (KLR)). 13.The first issue for consideration is whether the instant request for stay of execution was filed without unreasonable delay. The impugned judgment was delivered on 9th February 2026. On the other hand, the present application was filed on 10th March 2026, approximately one month after delivery of the judgment. Having regard to the foregoing, the court is satisfied that the application under consideration was filed timeously. 14.The other consideration in determining a request for an order for stay of execution pending appeal is whether the failure to issue the order is likely to occasion substantial loss to the applicant. In the court’s view, the term ‘’substantial loss’’ under Order 42 of the Civil Procedure Rules does not necessarily connote immeasurable or catastrophic loss. It merely alludes to the significant financial or material injury which one is likely to suffer if an order for stay of execution is not granted. 15.Speaking to the foregoing in the case of Tropical Commodities Suppliers Ltd & Others Vs International Credit Bank Ltd (In Liquidation) [2004] 2 EA 331, the court observed as follows:-‘’Substantial loss does not represent any particular mathematical formula, rather it is [a] qualitative concept. It refers to any loss great or small that is of real worth or value as distinguished from loss without value or a loss that is merely nominal.” 16.In Phineas Kaberia v Joseph Gachoki Gakuya [2019] KEHC 7282 (KLR), the learned Judge expressed himself on the subject as follows:-‘’In my view, substantial loss is any loss that is real and of value. There may be no mathematical formulae to prove substantial loss. It is an objective concept where, in money decrees, the applicant is under an obligation to show that if he pays over the money as decreed, he may not recover the same, if the appeal succeeds…….In this regard, what an applicant has to do is to state on oath that he believes that if the money is paid over to the respondent, the respondent may not be in a position to repay it back and that the money will be beyond reach.’’ 17.From the foregoing, it is apparent that the fact that the amount in dispute is modest does not discount the possibility that execution in respect thereof may occasion substantial loss to the party against whom the execution is levied. If an applicant for stay of execution is able to demonstrate that the chances of recovering the decretal sum from the Decree Holder are marginal should an appeal against the decree succeed after execution has been levied, he in the court’s view, will have demonstrated that he stands to suffer substantial loss if execution is levied irrespective of the amounts involved. 18.In the case before court, the Respondent contends that it is likely to suffer substantial loss if execution is levied for the decretal sum before the proposed appeal is heard and determined because it (the Respondent) is unlikely to recover the amount from the Claimant as his means are unknown. In the court’s view, once the Respondent made this assertion, the evidential burden shifted to the Claimant to demonstrate that he has the means to refund the decretal sum by filing an affidavit of means. This is because it is only him (the Claimant) who can speak to his means (see Phineas Kaberia v Joseph Gachoki Gakuya [2019] KEHC 7282 (supra)). 19.The record does not show that he (the Claimant) filed an affidavit of means to speak to his ability to refund the decretal sum should the proposed appeal succeed. All that he did was to aver that the Respondent had not presented evidence to show that he lacked the means to refund the decretal sum if the appeal succeeds. As such and in the court’s view, he did not cogently controvert the Respondent’s averment on oath that it (the Respondent) is likely to suffer substantial loss if execution is allowed to proceed before the appeal is determined because of the likelihood of not being able to recover the amount in the decree should the appeal succeed. 20.Having regard to the foregoing, it is the court’s view that the Respondent has demonstrated that it may suffer substantial loss if execution is allowed to proceed. As such, it (the Respondent) has satisfied the second condition for the grant of stay of execution pending appeal. 21.The third requirement for grant of an order for stay of execution pending appeal is that the applicant must provide security for the performance of the decree in the event of failure of the appeal. In the case before court, the Respondent has expressed its readiness to provide security for the performance of the decree and is willing to abide by any conditions which the court may impose in this regard. In the court’s view, this is significant because it demonstrates the Respondent’s commitment to provide security for the performance of the decree. 22.The amount which was awarded to the Claimant in the impugned judgment is Ksh. 600,000.00. As such, the security which the Respondent is required to provide should be sufficient to guarantee payment of this amount to the Claimant should the appeal fail. Determination 23.Having regard to the foregoing, the court issues the following orders:-a.The court grants the Respondent’s plea for stay of execution pending the hearing and determination of the proposed appeal against the court’s judgment on condition that it (the Respondent) deposits the decretal sum of Ksh. 600,000.00 into a joint interest earning account in the names of the advocates on record for the parties within thirty (30) days of this order.b.The joint interest earning account to be set up in a reputable financial institution to be agreed on by the parties within fifteen (15) days of this order to enable the depositing of the decretal sum.c.If the parties do not agree on the financial institution in which the joint account is to be opened within the aforesaid timelines, the Deputy Registrar of the court to nominate a financial institution for them.d.In the event of failure to deposit the decretal sum into a joint interest earning account within thirty (30) days from the date of this order, the order for stay of execution issued herein to automatically lapse and the Claimant to be at liberty to execute for the decretal sum subject to ascertainment of the quantum of party and party costs as required by law. DATED, SIGNED AND DELIVERED ON THE 7TH DAY OF JULY, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Claimant…………….for the RespondentOrderIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.